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Blog of the International Journal of Constitutional Law

War on Drugs and Due Process in Mexico

A few days ago, a federal judge in Mexico ordered the release of a group of local government officials from the state of Michoacán (some of them elected, others appointed) that the office of the Mexican Attorney General (Procurador General in Spanish) accused of having links with the organized crime. The judge considered that prosecutorial accusations based on hearsay, illegally obtained evidence, and other questionable practices are simply not allowed and thus insufficient for convicting the officials. The reaction of the Mexican President and the Attorney General is not unexpected but still worrisome: they accused the judge for “liberating criminals” and have filed a formal complaint against the judge before the judicial council.

In Mexico, the Public Prosecutor’s Office (PPO) is subordinated to the Executive, whose political use of criminal prosecutions crystallized in the proverbial “for my friends everything, for my enemies the law”, attributed to the President who was in power in the beginning of the XX Century. The transition to democracy brought with it a series of constitutional amendments that include a judicial reform empowering the judiciary and a reform to the criminal procedure that emphasizes due process rights. The PPO’s institutional structure and the incentives of prosecutors, however, remain untouched and their practices are still those perfected during seventy years of authoritarian regime. The unfortunate coincidence (not completely fortuitous) of the process of democratization, liberalization, and decentralization with the increased presence and power of the organized crime and the drug trafficking has put the balance between security and liberty at the center of the stage. To mention just one example: the cited reform to the criminal procedure includes a special regime for persons accused of organized crime.

Despite the adverse political circumstances, the Mexican Supreme Court in a series of recent decisions (for example the Acteal case which was mentioned in this blog) has uphold criminal due process rights and put sensitive limits to prosecutorial discretion. The federal judge deciding the Michoacán case was actually following recent precedents. It is not only the prosecutor’s discretion that is being limited by the Court but also the army’s, though to a much lesser degree, given that the use of the military by the President to directly fight the drug cartels has predictably produced many claims of basic rights violations. The constitution and in particular due process rights should not become another casualty of the war of drugs. A strong defense of them is, in Stephen Holmes’s words, a case where “less is more”: less discretion for the government in the fight for security can result in more power and authority to carry out that fight. It is the province of the Courts to cleverly illuminate that difficult path.

JRF

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Published on October 8, 2010
Author:          Filed under: due process, hp, Julio Rios-Figueroa, Mexico
 

Comparative Originalism

Thank you to Tom for noting my book review! I did want to add one thing: The issue of how the courts of other countries interpret their constitutions is relatively understudied. There is a good book with single-country studies from 2007 edited by Jeffrey Goldsworthy (Monash University, Australia).

I have a reply forthcoming in the Texas Law Review to an article on originalism in comparative perspective written by Jamal Greene. Professor Greene’s very interesting article talks about originalism in a few different countries. In my reply–which I hope to expand into an article in the near future–I note that there are actually other countries where originalism is a topic of discussion and a source of constitutional meaning. As the reply (and the article) discuss, it tends to be the constitutions where the constitution is part of a nation-creating revolution–and so where the drafters of the Constitution have a special status because they are not just constitution drafters but nation-creators. This means that many post-colonial constitutional systems–like the United States–feature discussions of originalism.

–DF

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Published on October 7, 2010
Author:          Filed under: constitutional interpretation, David Fontana, hp, originalism
 

Book review of Making Our Democracy Work

Our colleague David Fontana of George Washington University has a book review of Justice Stephen Breyer’s new book here. An excerpt: “It is hard to understand Breyer’s approach to the Constitution without first considering the alternative that he is responding to, conventionally called originalism. Originalism, as Scalia has described it, means that the Constitution should be interpreted according to what those alive at the time of its drafting thought its words meant. By any measure, originalism has become a major source of constitutional meaning, relied on by courts and politicians alike. When the Supreme Court decided its landmark gun rights case in 2008, Heller v. District of Columbia, the liberal and conservative justices didn’t argue mostly over whether original understanding was important — instead, they argued about what the correct original understanding of the constitutional right to bear arms should be. Liberal or conservative, we are all originalists now.

But Breyer wants courts to rely on much more than just originalism, and he argues for a vision of the Constitution focused not just on opinions from the 18th century but also on considerations from the 21st. Breyer believes that, in ruling on constitutional issues, judges should also look to “history, tradition, precedent . . . purposes and related consequences,” all in an attempt “to help make the law effective” and to help courts engage in a workable relationship with the other branches of government.”

It seems safe to say that this debate is largely American. Originalism seems to have had less impact in other jurisdictions. In part this might be because other countries do not have the same quasi-religious veneration for constitutional founders, who in many cases are still active politicians; it might be because the Breyer position is so widely accepted as not to provoke controversy.

–TG

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Published on October 5, 2010
Author:          Filed under: David Fontana, hp, United States
 

General elections in Bosnia and Herzegovina reveal ethnic frustrations

The latest general elections in Bosnia and Herzegovina, held on 3 October 2010, exemplify just how troubling the ethno-democratic Constitution of the country is. This is particularly visible in the election of the members of the Presidency of Bosnia and Herzegovina.

The Constitution of B&H provides (in Article V) that the Presidency will have three members, where a Serb member is elected from the “Republic of Srpska” entity, while Bosniak (Bosnian Muslims) and Croat members are elected from the territory of the “Federation of Bosnia and Herzegovina” entity. Thus, the members of the Presidency are elected by entire populations of those entities and not just their specific ethnic groups (although, because of “ethnic cleansing” this was in reality always the case in Republic of Srpska). One of the problems with this provision, mostly of principle then practical nature, is that it is discriminatory, in the sense that someone not identifying with the three “constituent peoples” may not stand for the election to the Presidency of B&H. This question was dealt with by the European Court of Human Rights in Sejdić and Finci v. Bosnia and Herzegovina case of last year, where the Court found in the favour of the applicants – the decision has still not led to constitutional reforms in that regard.

The more practical problem with the provision is the fact that it enables the specific majorization of Bosnian Croats in the Federation of B&H entity, since Bosniaks, because of their sheer demographic majority can elect both the Bosniak and Croat member of the Presidency (this could also be the case if all the Croat parties had only one candidate). This has occurred two times already, the including these elections. Both times Željko Komšić, an ethnic Croat, the candidate of a left-leaning multiethnic Socialist Democratic Party, was elected almost entirely by Bosniaks, while Croats overwhelmingly voted for two candidates of the Croat nationalist parties. Komšić, who speaks Bosnian (rather than Croatian), and who served in a mostly Bosniak army during the war, identifies himself mostly as a candidate of the “citizens” of Bosnia and Herzegovina (although citizens, according to the Constitution, are a either a separate minority or part of “Others”). Indeed, the Constitution does not expressly say that the Croat member of the Presidency represents the Croats (and the same goes for other members), nevertheless the systematic analysis of the Constitution inevitably leads to the conclusion that its nature is ethno-democratic, rather than orientated to an abstract citizen. The issue is that of legitimacy, rather than legality.

The Constitution has always been an exercise in frustration for (Bosnian) Croats, since they undoubtedly have the weakest position of the three constituent peoples. Thus, it does not completely surprise that the leading Croat nationalist party (HDZ) had made an agreement with the leading Serb nationalist party (SNSD) on the creation of the separate federal unit within (Federation of) Bosnia and Herzegovina. Croats have also indicated the possibility of early elections in two years if the issue of Presidency is not solved through constitutional amendments. None of that, of course, can be done without Bosniaks (among which the “consociation” is a taboo word), and previous attempt at para-constitutional internal secession by Croats proved unsuccessful and has been sanctioned by the High Representative of International Community. Although not subject of this post, it suffices to say that Croats either have no means of judicial resolution of these issues or have (unsuccessfully) exhausted the same.

Calls for external secession (Bosnian Serbs), for internal secession (Bosnian Croats), further centralisation (Bosniaks) and de-ethnicization (“Others”) of Bosnia and Herzegovina show the limits of the constitutional attempts to accommodate all the different interests in a multiethnic state. It remains to be seen how destabilising these calls will be, although at this point long-awaited constitutional reforms seem inevitable. The modalities of such reforms are, however, highly contested.

–Nedim Kulenović, Faculty of Law, University of Sarajevo

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Published on October 4, 2010
Author:          Filed under: Bosnia, hp, Nedim Kulenović
 

Feeble Democracy in Ukraine

A classic episode of the American television comedy Seinfeld finds two of the characters, Kramer and Newman, on a subway car playing the board game RISK. Kramer taunts his opponent for his losing position to which the latter responds “I’m not beaten yet. I still have armies in the Ukraine.” The provocation continues as Kramer responds that “The Ukraine is weak. It’s feeble.” At which point a large and angry eavesdropper with a pronounced Slavic accent comes forth from elsewhere in the car bellowing “I come from Ukraine! You not say Ukraine weak! Ukraine is game to you!?“ The man attacks them and smashes their game board.

With this in mind I will refrain from questioning the Ukraine’s strength. As the largest nation in Eastern Europe save Russia, and possessing a standing army of 1.2 million people (14th in the world) the country is certainly not weak. What does seem increasingly feeble however is Ukrainian democracy which took a serious blow this week when the Constitutional Court, under pressure from President Viktor Yanukovych abolished the liberal 2004 Constitution which had granted checks and balances to executive authority in the wake of the Orange Revolution and replaced it with an earlier (and more executive-friendly) version.

The real story begins in 1996 (a year after the Seinfeld episode originally aired) when Ukraine adopted its first constitution since achieving independence. Up until then the government had functioned under a constitution known as the Fundamental Law, established in 1978 under the Ukrainian Soviet Socialist Republic, which relegated much national authority to the Kremlin. That constitution had already been amended several times as communism began to weaken, and again when the country broke away from the Soviet Union in 1991. Yet five years later it was deemed necessary by the post-independence government to put in place a constitution unsullied by the legacy of the USSR.

Although the new government structure under the 1996 Constitution did go a long way towards asserting the nation’s newfound independence, it inherited from its predecessor a very strong executive function which led to numerous abuses and very high perceived corruption under then president Leonid Kuchma. One of these incidents involved the publication of audio recordings which implicated Kuchma in the kidnapping and decapitation of an opposition journalist, as a result of which he is rumored to have agreed to step down in 2004 in exchange for immunity from prosecution. His handpicked successor, and former Prime Minister, Yanukovych was announced as having won the election to succeed Kuchma by the Ukranian Central Election Committee. Yet the results of that election were challenged by his opponent Viktor Yushchenko who was backed by numerous international observers, this precipitated the peaceful social unrest which became the Orange Revolution.

As might be expected from a country bordering Russia to the east and the European Union to the west, Ukraine has always suffered a bit of an identity crisis. The Western part of the country identifies strongly with Europe and has always viewed Moscow with great suspicion, while in the Eastern regions this dynamic is reversed. This imbalance asserted itself both when Yushchenko, the liberal pro-Western candidate was installed after the Orange Revolution, and when (following four uninspired and unpopular years of his rule) he was defeated by his old foe Yanukovych who promised to return order and strengthen ties with Russia.

This new ruling by the Constitutional Court represents the death knell of the Orange Revolution which led to important constitutional improvements that moved Ukraine away from the type of empowered presidential system common in Warsaw Pact countries (and to a lesser extent in the United States) and towards a Western European style parliamentary democracy. Legislators were granted longer terms, the authority to appoint and dismiss key government positions such as ministers (including the PM) and directors and could override presidential authority in most cases. Opponents complained that the new governmental structure was not well organized, with redundant authorities lending themselves to the inaction and political polarization which marked Yushchenko’s tenure as president. There is some truth to these claims. The 2004 Constitution was a rush job, thrown together in the euphoria following the Orange Revolution and seeking to legitimize the results of the election crisis. It is likely that balancing amendments would have been necessary to streamline governmental procedures and make institutions more responsive.

The return to the 1996 Constitution however, is at best a classic overcorrection and at worst a downright coup by Yanukovych. The reinstated document returns to the presidency a veritable carte blanche for restructuring, dismissing and appointing government positions without legislative consent (requiring parliamentary approval only for a prime ministerial appointment.) Furthermore the empowered executive can strike down parliamentary initiatives it disagrees with in embryo or veto them at will during the legislative process.

It is unfortunate that the events of 2004 have now come full circle and that the Ukrainian people have been robbed of victories which in retrospect may have cost them too much.

~ Daniel Lansberg-Rodriguez

For an English version of the reinstated constitution: http://www.rada.gov.ua/const/conengl.htm#r5

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Published on October 3, 2010
Author:          Filed under: courts, Daniel Lansberg-Rodriguez, hp, Ukraine
 

Kosovo Con Court Rules Against President

The Constitutional Court of the Republic of Kosovo ruled last week in Naim Rrustemi and 31 Other Deputies of the Assembly of the Republic of Kosovo v. His Excellency Fatmir Sejdiu that President Fatmir Sejdiu committed a “serious violation” of the Constitution of Kosovo for simultaneously serving as President of the Republic and President of the Democratic League of Kosovo (LDK), a political party. Sejdiu promptly resigned as President of Kosovo.

Article 88 of the Kovoso Constitution, titled “Incompatibility,” reads as follows:

1. The President shall not exercise any other public function.
2. After election, the President cannot exercise any political party functions.

Thirty-two deputies of the Assembly of Kosovo lodged a referral with the Constitutional Court claiming that Sejdiu violated Article 88(2) because he continued to serve as President of the LDK. (Article 113 of the Constitution authorizes 30 or more deputies to bring such a question to the court.) Sejdiu argued that his position as President of the LDK was in name only–that while he held the title, he didn’t exercise the power. (In Sejdiu’s words, he “froze” his party functions.)

The Constitutional Court didn’t buy it. The court ruled that Sejdiu and the party sought to benefit each other from their association, violating both the letter and the spirit of Article 88(2). The court:

“68. In reality, both the President and the LDK wish to benefit from their association with each other. The President may be able to “unfreeze” his exercising of the functions if and when he leaves the office of the President of Kosovo. The party may seek political advancement by being associated with a powerful constitutional officer, the President of the Republic of Kosovo. The symbiotic relationship remains between the President and his party to this day. They thus “make use of” each other by permitting this public association to continue. This “making use of” is one of the definitions for “exercise” that the President offers in his response.”

The court further ruled that the violation was “serious”–a ruling that under Article 91 allows the Assembly to dismiss the President by a 2/3 vote of all deputies. Why “serious”? Because of the impact on public confidence in Sejdiu and the President’s constitutional duty to represent all the people (and not just a faction):

“69. In considering whether this violation is merely a technical violation of the Constitution or rather a serious violation the Court should assess the impact of the President’s decision on the confidence of the public in the office of President of the Republic of Kosovo. Bearing in mind the considerable powers granted to the President under the Constitution it is reasonable for the public to assume that their President, ‘representing the unity of all people’ and not a sectional or party political interest, will represent them all. Every citizen of the Republic is entitled to be assured of the impartiality, integrit and independence of their President. This is particularly so when he exercises political choices such as choosing competing candidates from possible coalitions to become Prime Minister.”

Sejdiu’s resignation obviously preempts any Assembly attempt to oust him under Article 91. It may also throw a wrench into Kosovo’s negotiations with Serbia. Kosovo declared its independence from Serbia in 2008, but Serbia has not recognized it as an independent country. Early this year the International Court of Justice ruled that Kosovo’s declaration of independence was not illegal under international law. Serbia recently signalled that it was open to negotiations over practical issues in the relationship between the two.

Steven D. Schwinn
Associate Professor of Law
The John Marshall Law School

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Published on October 1, 2010
Author:          Filed under: Uncategorized
 

Georgia’s constitutional amendments move forward

Georgia’s parliament votes today on the second reading of proposed constitutional amendments that will reduce presidential powers and increase the power of the prime minister as well as those of the parliament. The president, however, will remain directly elected, and will have some role in oversight. Several years ago, constitutional amendments were criticized for concentrating too much power in the hands of the president; this seems to shift the formal balance back. Some argue that President Saakashvili is laying the groundwork for moving to the office of Prime Minister once his presidential term expires, an odd echo of his nemesis Vladimir Putin.

Among the proposed changes: parliament has greater ability to overcome a presidential veto of law. Only an absolute majority will be required, as opposed to 60% of members previously. So this amounts to a strengthening of the parliament and weakening of the president.

The president does get some new competences but generally is weaker. He gains the general power of legislative initiative; previously it was restricted to certain “exclusive cases.” The president is now clearly the commander in chief (Art. 69). But the president can no longer dismiss certain ministers directly (Art. 73(c)); loses the power to approve the budget (Arts. 73(e); 93; and the ability to make law by decree when parliament is not in session (73(q)). To compensate for the lack of budget power, he is given a guarantee of non reduction of the budget without his consent (Art. 74). The scope of presidential decrees (Art. 73(f)) is clarified so that it is clear these are related to implementation of law and not a kind of general lawmaking power. This is less authority than some presidents in semi-presidential systems, who have an independent lawmaking power in certain domains.

The president also loses a good deal of power in government formation and appointment of ministers (Art 78; 80(2)).There is no discretion, or at least very little, in having to nominate for prime minister the person proposed by the best performing party in the elections. In this sense the president looks a lot like a parliamentary monarch, without real power here, though Saakashvili and others have rejected the comparison. So the overall sense is to strengthen the government and parliament. Should the changes pass, they will take effect from 2013.

-TG

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Published on October 1, 2010
Author:          Filed under: Georgia, hp, Tom Ginsburg
 

Ambiguities in Iraq’s Constitution

Last week I participated in a fascinating conference hosted by the National Constitution Center and University of Pennsylvania Law School that waded neck deep into Iraqi constitutionalism, and federalism in particular. I argued that among the problems with the federal framework established by the Iraq Constitution is that it is both ambiguous and internally inconsistent to the point where there are now at least three widely held competing views of the powers and authority of Iraq’s fifteen provinces (all of Iraq except the Kurdistan region).

Another participant argued the contrary – that the ambiguities in Iraq’s Constitution have been beneficial in that they’ve allowed for flexibility as Iraqi notions of federalism have evolved. The implication being that an unambiguous text that concretely froze Iraq’s federal design based on the views around the constitution negotiating table in 2005 would be detrimentally restrictive and contrary to the vision shared by many (if not most) Iraqis today. (It merits reminding that not only have Iraqi Shia views changed substantially since 2005 – from favoring decentralized regions to a more centralized nationalistic vision of Iraq – the Sunnis were not even present during the key negotiations and drafting.)

If we are able to put aside our distaste of the idea of a Constitution being so overly ambiguous and self-contradictory (it’s difficult to have rule of law without clear laws) then, particularly for Iraq, the ambiguities may indeed prove useful. Iraq’s constitutional “moment” was almost just that… a moment. The Constitution was negotiated and drafted in about six weeks, under occupation, and in a hostile and unstable environment. As previously mentioned, a key constituency (Sunni Arabs) was not even present. There is no way Iraq’s components could have fully discussed and reached consensus on such existential matters as the division of powers between levels of government, the distribution of oil revenue, or even the very map of Iraq – each of these issues is ambiguously or incompletely resolved in the Constitution.

Perhaps the ambiguities might better be thought of as placeholders until such time as Arabs and Kurds, Sunni and Shia, can reach consensus on these issues. Iraqi federalism can continue to evolve until a final interpretation (through adjudication or amendment) is reached. The pragmatist in me sees the wisdom in this. The rule of law practitioner in me still bristles.

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Published on September 30, 2010
Author:          Filed under: hp, iraq, Jason Gluck
 

Turkey’s New Majoritarian Difficulty

On September 12, 1980, the Turkish Armed Forces took control of the Turkish government in a bloody coup d’état. Exactly thirty years from that date, on September 12, 2010, Turkish voters approved by 58% of the vote a package of twenty-six amendments to the 1982 Constitution, which was ratified following the coup. The amendments implement a sweeping set of reforms—from empowering the Parliament to pass affirmative-action laws for women to expanding the constitutional right to privacy.

The governing Justice and Development Party pitched the referendum package as a set of reforms intended to democratize the anti-democratic 1982 Constitution. According to Mr. Erdogan, who is the Prime Minister and the head of the governing party, the referendum package would decrease the influence of counter-majoritarian institutions, such as the Turkish Armed Forces, on the political process. The referendum happened to coincide with Seker Bayrami (or Eid ul-Fitr), a religious holiday that marks the end of Ramadan, when much of Turkey’s secular elite was on vacation and away from their registered polling places.

The referendum was a resounding success for Mr. Erdogan. Its results were celebrated by the governments of the United States and European states as a testament to Turkey’s vibrant democracy and the strength of its candidacy for the European Union. Although a majority of the amendments are a cause for celebration, two amendments raise grave concerns. These two amendments take aim at Turkey’s once-independent judiciary, which has been an ardent protector of secularism in a nation troubled by a fundamentalist past and threatened by a fundamentalist future.

First, the amendments permit the packing of the Turkish Constitutional Court by increasing the number of seats on the Court from eleven to seventeen. Before the referendum, the President could appoint six of the eleven Justices only from a short list of judges compiled by various independent judicial institutions (including the Turkish High Court, the Turkish Council of State, the Turkish Military High Court, and the Turkish Military High Court of Administration). This process ensured that the appointment of at least six members of the eleven-member Court—i.e., the majority—remained largely insulated from political influence.

The referendum added six new seats to the Court and gave the power to appoint all six Justices to the political branches. One of these six members will be appointed directly by the President. The remaining five will be selected either by the President or the Parliament from short lists of judges compiled by various other institutions. Short lists for four of these remaining five Justices will be compiled by government-friendly institutions—such as the Higher Education Council (charged with supervising Turkish universities) and the Turkish Court of Accounts (charged with auditing accounts on behalf of the Parliament)—whose members are selected directly by the political branches or whose interests are aligned with the current governing party. The new constitutional amendments thus convert what used to be a 6-5 balance on the Constitutional Court in favor of Justices selected by counter-majoritarian institutions into an 11-6 balance in favor of Justices selected by majoritarian or majoritarian-influenced institutions.

Second, the amendments also permit the packing of the Supreme Board of Judges and Prosecutors by expanding the Board from seven to twenty-two members. The Board serves an important counter-majoritarian function because it appoints prosecutors and judges to the Turkish High Court and the Turkish Council of State. The High Court especially will play an important role in the next few years because it likely will hear the appeal of what has been dubbed the “case of the century” in Turkey: Ergenekon (named after a mythical valley in the Altay Mountains that Turkic tribes used as a shelter). Under the Ergenekon indictments, numerous individuals have been wiretapped, detained, interrogated, and arrested for allegedly conspiring to overthrow the Turkish government. Among those arrested are former military generals as well as professors and journalists who have vocally criticized Mr. Erdogan and his party.

Surprisingly, a majority of the Turkish secular elite blames, at least partially, the United States for the referendum results. The secularists believe that the United States has been supporting Mr. Erdogan and his party to pave the way for the establishment of a moderate and democratic Islamic Republic in Turkey. The secularists’ theory goes as follows. As things stand, Turkey’s strictly secular regime is too distinctively areligious to be a persuasive model of governance for Islamic countries of the Middle East. If, however, Turkey’s secular regime were replaced with an Islamic—yet moderate and democratic—republic, the United States might more effectively use Turkey to exert a positive influence on Middle Eastern countries that espouse Islamic law.

As support for their theory, the secularists point, for example, to President Obama’s phone call to Mr. Erdogan following the referendum. During the phone call, President Obama congratulated Mr. Erdogan and acknowledged “the vibrancy of Turkey’s democracy as reflected in the turnout for the referendum.” Although President Obama’s comments focus on voter turnout and are not a ringing endorsement of the substance of the amendments, neither are his comments a careful repudiation of the new provisions that threaten the independence of the Turkish judiciary.

Will Turkey be the next Iran—a once-secular country that, in an aggressive spurt, becomes Islamic following a nationwide referendum? It is too early to tell. But one thing is clear: The amendments ratified with the referendum give the current government significant leeway to enact laws that may push Turkey towards a fundamentalist future.

–Ozan Varol, Chicago-Kent College of Law, USA

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Published on September 30, 2010
Author:          Filed under: hp, judicial appointments, Ozan Varol, Turkey
 

Government Formation and Iraq’s Constitution

If reports of a breakthrough in formation of a new Iraqi government are to believed (a questionable proposition), it is worth noting two ways Iraq’s Constitution has been implicated in the unmitigated disaster that has been the failure to form a government almost seven months after Iraq’s parliamentary elections.

First, there is the way the Constitution treats government formation itself – (1) it is ambiguous as to which party is entitled first chance to form a government; and (2) provides no penalty (for example, new elections) should the newly elected parliament fail to confirm a government within a specified time. Both of these infirmities have contributed to the on-going impasse.

However, the Constitution has also been criticized for the extreme power that exists with the Prime Minister, with some going so far as to call for an extra-constitutional body – a Political Council for National Security that would be given the power to review security, budget and oil export policy – in order to diffuse power within the executive and make any candidate for prime minister (but particularly current Prime Minister Nouri al-Maliki) more palatable. Vice-President Biden articulated this view in a September 9, 2010 interview with the New York Times:

Q. What about the U.S. proposal that a political council with binding authority could be part of the political formula, and maybe the prime minister would diminish in power with a political council? What is the status of this proposal, and can it break the political deadlock in Iraq?

A. I think two things are going to be necessary …. The answer is that I think they have all concluded it is in their mutual interest for different reasons to, in effect, effectively legislate the powers of the prime minister, devolve some of the powers of the prime minister, of the premiership. I think there is a growing awareness that there is a need for something akin to our National Security Council with, I mean, as an independent unit that serves some of the functions the Council of Ministers served before.

http://atwar.blogs.nytimes.com/2010/09/09/transcript-vice-president-biden-on-progress-and-lingering-threats-in-iraq/?scp=1&sq=iraqi%20government%20formation%20security%20council&st=cse

See also, http://www.nytimes.com/2010/09/10/world/middleeast/10policy.html?_r=1

Whatever the merits of this proposal, it is worth noting that the problem it seeks to remedy is almost certainly not a constitutional one. Consider that under the Iraqi Constitution:

• Declaration of war or a state of emergency must be declared by the Prime Minister and President jointly. Art. 61.9

• The President, and not the Prime Minister, is the guarantor of the Constitution. Art. 67.

• The Prime Minister cannot dismiss a member of the Council of Ministers without the consent of the Council of Representatives. Art. 78

• The President must consent to a request of the Prime Minister to dissolve the Parliament. Art. 64.

• The Prime Minister is the “direct executive authority responsible for the general policy of the State and the commander-in-chief of the armed forces.” Art. 78. But it is the Council of Ministers as a body, and not the Prime Minister alone, that is constitutionally empowered to “plan and execute the general policy and general plans of the State . . . propose bills . . . issue rules, instructions, and decision for the purpose of implementing the law . . . prepare the draft of the general budget, the closing account, and the development plans . . . recommend to the Council of Representatives that it approve the appointment of undersecretaries, ambassadors, state senior officials, the Chief of Staff of the Armed Forces and his deputies, division commanders or higher, the Director of the National Intelligence Service, and heads of the security institutions . . . [and] to negotiate and sign international agreements and treaties.” Art. 80

• The Council of Ministers is empowered to “establish bylaws to organize the work therein.” Art. 85

In this way the Constitution already substantially diffuses power over affairs of the state, foreign policy, and national security. The problem is that many of these recourses have been ignored – for example, the failure of the Council of Ministers to meaningfully empower itself through its bylaws and the failure of the Presidency Council to give meaning to its role as guarantor of the Constitution. At the same time Prime Minister Maliki has used his popularity since 2008 (when he turned the armed forces against the Medhi Army in Basra and Baghdad), the support of the U.S. Government, and, perhaps most of all, the political divisions within Council of Ministers to amass greater and greater authority within his office.

The net result has been a Prime Minister’s office disproportionately empowered compared to what the Constitution envisions and, consequently, calls for extra-constitutional mechanisms to share power within the executive. Internationals and Iraqis alike might look to the Constitution and existing institutions to remedy these imbalances.

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Published on September 29, 2010
Author:          Filed under: election, hp, iraq, Jason Gluck